NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 14 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ELENILSON A. COTO DELGADO, No. 22-984 Agency No. Petitioner, A029-212-247 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 8, 2023 San Francisco, California Before: FRIEDLAND and M. BENNETT, Circuit Judges, and R. BENNETT, Senior District Judge. ** Petitioner Elenilson Armando Coto Delgado (“Coto”) is a native and citizen of El Salvador who most recently entered the United States in 2019. Through the instant petition, Coto challenges a ruling of the Board of Immigration Appeals (“BIA”) upholding an oral decision of an Immigration Judge (“IJ”), who * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation. found that Coto’s Louisiana conviction for second-degree battery constitutes a particularly serious crime barring withholding of removal. Coto also challenges the BIA’s conclusion that he waived review of his CAT claim. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition. I. Administrative Exhaustion “This Court may review a final order of removal only if ‘the alien has exhausted all administrative remedies available to the alien as of right.’” Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (quoting 8 U.S.C. § 1252(d)(1)). “Exhaustion requires a non-constitutional legal claim to the court on appeal to have first been raised in the administrative proceedings below, and to have been sufficient to put the BIA on notice of what was being challenged.” Umana- Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023) (quoting Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020)).1 This requirement is not applied “in a formalistic manner.” Diaz-Jimenez v. Sessions, 902 F.3d 955, 959 (9th Cir. 2018) (quoting Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011)). While “[a] petitioner must do more than make a ‘general challenge to the IJ’s decision,’” they “may raise a 1 The Supreme Court recently held that the 8 U.S.C. § 1252(d)(1) exhaustion requirement “is a non-jurisdictional rule ‘merely prescrib[ing] the method by which the jurisdiction granted the courts by Congress is to be exercised.’” Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1114 (2023) (quoting Kontrick v. Ryan, 540 U.S. 443, 454 (2004)). The exhaustion requirement is therefore “subject to waiver and forfeiture.” Id. at 1116. However, because the government argues that Coto failed to exhaust administrative remedies as to his CAT claim and his challenge to the IJ’s consideration of his sentence, it has not waived or forfeited this requirement. 2 22-984 general argument in the administrative proceeding and then raise a more specific legal issue on appeal.” Bare, 975 F.3d at 960 (quoting Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004)). “What matters is that …
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